Citation Nr: 0526834
Decision Date: 09/30/05 Archive Date: 10/17/05
DOCKET NO. 02-17 779A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Whether the appellant has legal entitlement to accrued
benefits.
3. Whether the appellant has legal entitlement to
nonservice-connected death pension benefits.
ATTORNEY FOR THE BOARD
J. Johnston, Counsel
INTRODUCTION
The veteran served as a member of the Recognized Guerrillas
during World War II from November 1942 to July 1945. He died
in May 1990, and the appellant is his surviving spouse.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from rating decisions issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, Republic of the Philippines, which denied all pending
claims. In July 2004, the Board issued a decision which
confirmed denials of all pending claims. Thereafter, the
appellant appealed, and the US Court of Appeals for Veterans
Claims (Court) granted a joint motion for remand in a May
2005 order which curiously failed to vacate the Board's prior
decision. The case is not ready for appellate review and,
for the reasons provided below, must be remanded to the RO
via the Appeals Management Center (AMC) in Washington, DC.
REMAND
The joint motion for remand granted by the Court correctly
pointed out that in October 2003, the appellant requested
additional time to procure and produce evidence in support of
her pending claims. In November 2003 the RO granted her
request giving her until "October 3, 2004," to submit any
additional evidence she might have. The RO did not, however,
retain the claims folder at the RO until the expiration of
that date, but subsequently forwarded it to the Board, and
the Board denied all pending claims in July 2004, prior to
the expiration of the period the RO had given the appellant
for submission of new evidence.
Following the return of the appeal to the Board, the
appellant was notified that she had the right to submit
additional evidence. In August 2005, she submitted several
written statements and a January 2004 statement from a
private physician which is relevant to that physician's
medical treatment of the now-deceased veteran. One written
statement of the appellant to the Board clearly requests "my
case to be remanded." In the same submission, however, the
appellant returned a standard form provided her by the Board
upon which she checked paragraph 4, stating that she was
submitting evidence and waved her right to have the case
remanded to the RO for review.
There is an apparent conflict in these statements of the
appellant's wishes but, because the appellant is shown to be
aged, not well-educated, and without representation, and
because this case has already resulted in a remand by the
Court for a breach of the appellant's due process rights, the
Board will remand the appeal so that the RO may initially
consider the newly submitted evidence in accordance with the
appellant's written statement requesting such remand. The
appellant's handwritten request must be given precedence over
her check mark on a standard form.
For these reasons and bases, the case is REMANDED to the RO
for the following:
1. It is apparent from the record that
the appellant, at least at one time,
requested assistance in appointing a
representative to assist her with her
appeal. It is clear that the RO offered
such assistance, but the appellant did
not take any action. The RO should again
provide the appellant with any standard
assistance and information necessary for
the appellant to secure the services of a
representative to assist her with her
appeal, should she so choose.
2. The RO should request the appellant
to sign a medical release form so that
the they may request Ofelia C. Pahalin,
M.D., to submit copies of any of her
contemporaneous treatment records of the
veteran during his lifetime. The RO
should also consider conducting any
additional development suggested by the
evidence on file or anything submitted by
the appellant on remand.
3. After completing any development
indicated, the RO should again consider
the appellant's appeal. If any decision
is not to her satisfaction, she should be
provided a supplemental statement of the
case and an opportunity to respond. The
case should thereafter be returned to the
Board after compliance with all appellate
procedures. The appellant need do-
nothing until further notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C.A. §§ 5109B, 7112).
_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).